Frank v. Vogt

178 A.D. 833, 166 N.Y.S. 175, 1917 N.Y. App. Div. LEXIS 7336

Opinions

Scott, J.:

There was clearly no accord and satisfaction disclosed by the evidence. Defendant-had agreed to purchase merchandise at a fixed price. It was delivered to and retained by him. He thereby became indebted for the purchase price. As against this he claimed an offset because some of the goods were not up to the agreed quality, and this he undertook to deduct from the purchase price, sending plaintiffs a check for the balance which was admittedly due in any event. Plaintiffs retained the check as they were entitled to do, and now sue for the remainder of the purchase price.

That this transaction does not constitute an accord and satisfaction is well established. (Windmuller v. Goodyear Tire & Rubber Co., 123 App. Div. 424; Eames Vacuum Brake Co. v. Prosser, 157 N. Y. 289; Laroe v. Sugar Loaf Dairy Co., 180 id. 367; Kleinfelter v. Granger, 136 N. Y. Supp. 485; affd., sub nom. Klinefelter v. Peterson, 152 App. Div. 896.)

That defendant, when he sent the check, wrote that he was sending it as full payment does not affect the question. He could not by paying'an amount admittedly due in any event, foreclose plaintiffs from claiming that more was due, nor yet subject them to the risk of postponing the payment of the whole claim, until defendant’s relatively small counterclaim could be judicially liquidated. To hold otherwise would result, in many cases, in permitting a debtor to coerce his creditor into making an unjustified deduction from his bill.

The determination of the Appellate Term is reversed and the judgment of the Municipal Court affirmed, with costs to plaintiffs, appellants, in this court and the Appellate Term.

Clarke, P. J., Page and Davis, JJ., concurred; Laugh-list, J., dissented.